Webinar presenter Elizabeth Ortiz answered a number of your questions after her presentation, Ethics and Human Bias. Here are just a few of her responses.
Audience Question: How do you think a culture can be created in a prosecution office so that prosecutors don’t feel vulnerable when they end up admitting that they were wrong?
Elizabeth Ortiz: That’s a wonderful question. If you had asked me that a few years ago before I got involved with What You Do Matters: Lessons from the Holocaust, I might have really been stumped because I wouldn’t have a ready answer. I will tell you at the risk of sounding like all I want to talk about is the Holocaust training, it is a training that has given me such hopes in so many ways because not only has it been incredibly professionally fulfilling for me to attend it and to facilitate it. It is catching on like wildfire across the country where myself and other facilitators are traveling around teaching it. The reason I think this is relevant to the question is, to me, Aaron, this symbolizes prosecution offices around the country recognizing exactly what the Holocaust training core message is which is that it is we all have the ethical obligations and they’re individual. Even though small decisions may be, can and do have a rippling impact. Based upon that, building upon that recognition of personal responsibility goes hand in hand in creating a culture in a prosecution office, all offices but I know today that we are speaking on specifically on prosecution offices of creating an environment where people can say, “You know what Aaron I don’t agree” or “I have a different perspective”, and talking it through. You may change my mind or you may not change my mind but having that open dialogue. I’m really thrilled to see this awakening and this recognition and embracing these values Aaron.
Audience Question: Eduardo wants to know if he could get the name of the training. I think you already just shared that. Do you know is it available on the Holocaust museum’s website or how might he be able to find out more about the training?
Elizabeth Ortiz: I neglected to forward to the last slide of my PowerPoint which has my contact information. I hope we can still do that Aaron. Thank you I appreciate that. Once we do that, that will make it available obviously to everyone in our audience today. To answer these questions, the Holocaust museum historians, the Holocaust museum in DC, their historians developed this curriculum. They developed this curriculum focused on the Holocaust for a number of different professions. I don’t want it to seem like the historians are solely focused on prosecutors and police officers or somehow putting everything on their shoulders. It’s not that at all. They developed a curriculum that to teach lessons for the people in the medical profession, for judges and for other professionals. Obviously, the curriculum that I am involved with is focused on prosecutors and police officers. They do teach a version of this at the Holocaust museum in DC. Based on their curriculum and with their support as a partner, we developed an out of museum if you would, a roadshow for lack of a better way to put it, version of the training which we are dedicated here in Arizona to provide to every single prosecutor and every single police officer. It is a lofty goal but we are moving straight ahead and really excited. We have been undergoing this training for a number of years. As I mentioned, many other states, Arizona is currently the only state which has this program. We are being invited far and wide to travel around the country and teach it for other prosecutor offices and law enforcement agencies.
Audience Question: There is Elizabeth’s contact information. Lorelei is wondering if you could present at Wisconsin’s Summit Annual Training Conference. Although you guys take that offline in terms of your availability.
Elizabeth Ortiz: Absolutely. Please. The only thing I kind of warn people. I believe so much in this training. I don’t get paid for it. It’s part of my job. People sometimes wonder if I am on retainer or something because I am so enthusiastic about it but I am so enthusiastic because I see first-hand tangible benefits. It is such a heavy subject matter in many ways but without giving too much away, it really is – it embraces and celebrates the good in law enforcement and the potential, and so it is very uplifting also. Yes, contact me, email me. We will talk.
Audience Question: Does creating a culture of change around bias need to come from the top in an agency? How can lawyers create changes in bias in their office when maybe they are not the most senior attorney in the room?
Elizabeth Ortiz: Having worked in a very large agency. I worked in a prosecution agency where there were well over 300 prosecutors, probably close to a 1000 non-attorney staff. It’s just a huge huge office and having worked on very small offices, I recognize that sometimes when you are on a big office that it may seem impossible especially if you are not the absolute top leadership in that office to feel like you can make a way and to get attention. Anywhere it starts is a good place to start. What I encourage people to do is to have that conversation and if the person you are having that conversation with is open to have a conversation with someone else and have it again and have it again and have it again. If you’ll excuse my analogy because I recognize that these are apples and oranges but years ago the prosecution office that I worked for, the large prosecution office, used to send me out to talk in elementary schools. Inevitably I get questions about what if I tell an adult something bad happened to me and they wouldn’t listen? What I would tell them is then that’s on that adult. That is not your fault. Tell another adult and tell another adult and tell another adult until the right thing is done. I apologize for it’s a really different situation but drawing it back to the question of how do I make a difference sometimes your initial supervisor and your colleagues may not be receptive. I believe the reception possibility is out there and so you keep talking and you there is great information online. There is a Harvard study on implicit bias. There is ample evidence regarding the fact that because we are human beings, like it or not we are susceptible to bias. Without making people wear a stigma that somehow that is a bad thing but rather look at it as a human being feature then how do we deal with it? I hope that is helpful.
Audience Question: Elizabeth there is a lot of discussion around using research and evidence-based practices in all of our work. How do we move forward when there is so much cynicism that research that would have been formerly considered a reliable source is now questioned and doubted?
Elizabeth Ortiz: If I’m understanding the question correctly, it is how do we have confidence that the factors we are basing our decisions on are legitimate factors, legitimate evidence and we are not being unduly influenced for example by confirmation bias or implicit bias. Let me give you an example of something that I have been recently involved with. That is medical evidence regarding abuse of head trauma, previously often referred to as shaken baby syndrome. There is a consensus paper by the medical community regarding abusive head trauma. There is a much smaller portion of the medical community which has taken a contrary view. In our abusive head trauma cases, sometimes the defense will bring forth what I will call the minority medical opinion regarding abusive head trauma. I think what we do, what we need to do is rather than simply dismiss, to fully consider all the evidence. Although I believe the medical community consensus paper that abusive head trauma is a real medical situation. I also do not believe that every single infant death is the result of abusive head trauma. I guess my suggestion using that analogy is to don’t be afraid, don’t be hesitant to say right well let’s talk about what are the concerns about this forensic evidence? Challenge yourself. That is my best advice on how to approach that
Audience Question: Can you talk a little bit about bias in the charging function especially when the suspect’s race is unknown?
Elizabeth Ortiz: Especially when the suspect’s race is unknown is that what you said? Okay. I spent quite a few years of my career as a charging attorney. One of my functions was I charge cases all day long. I didn’t do trials for those few years I would sit in my office most of the day with my feet up reading police reports, making charging decisions. It’s interesting when I look back now reading the studies and listening to the concerns raised about charging decisions, I think of my own practices as a charging attorney. A suspect’s race, at least at that time and I’m assuming it is the same or similar now in other jurisdictions, was noted on the face sheet of the police report but I would jump right into the guts of it. For me, the race was rarely if ever even mentioned other than perhaps if I’m reading a witness statement where they say in the body of their statement a body of particular suspect’s race in describing him or her. I thought a lot about what would I, how would my methodology change if I went back to being a charging attorney now and I’ll tell you that this is a little bit off-topic and I apologize but what I realize now is I think of all of the things that I learned such as in the area of human trafficking, being more cognizant, aware of human trafficking and that is an area when I think back on my career as a charging attorney, I do wonder if there were suspects that I charged let’s say perhaps for shoplifting or theft of some sort and while the evidence, support it, the charge that I filed against them that because of my own ignorance at the time, I didn’t see the bigger picture where that suspect very well may have been a human trafficking victim. When I think of charging, that’s an area that I really contemplate a lot and wish in ways that I could turn back the hands of time and maybe look at those cases with a more informed lens.
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